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HomeMy WebLinkAboutminutes.council.19740301 ~SPEN CITY COUNCIL 'SPECIAL MEETING MARCH Meeting was called by CoUncilmembers Jenifer Pedersen and James Breasted for the purpose of i reconsidering the question of the issuance of a building permit to the Gant and/or Destina- · ~ tion Resort Corporation. Meeting was called re order at 5.00 p.m. by Mayor Stacy Standley with Councilmembers Jeni- fer Pederse~, James Breasted, Pete DeGregorio, Ramona Markalunas, Jack Walls, Michael Behrendt, C~ty Attorney Sandra Stuller and City Manager Mick Mahoney. Councilman Breasted stated his reason for calling this meeting is that there still seems to be some questions that were not answered at the meeting on Monday, own opinion not really changed. Ask that the City Attorney expound on the cases which she has cited in her memo that are pertinent on whether or not a permit should issue for a building in an area that is to be rezoned. Further stated our whole system is against giving any recourse. Ac- tually do not feel this problem should be brought before Council but apparently members of the administration must have thought there some reason for turning down the permit. Believ a contract is a contract but it seems incredible that the City cannot protect the neighbor-! hood in the Ute Avenue area. City/County Planner Herb Bartel stated the Planning Office started working on the project in November or December of 1972. About the first time before the Planning and Zoning was January of 1973. The approvel process took approximately 6 months and four month between the Planning and Zoning and Council. The Planning office does not have any choice but to process a subdivision plan that is consistent with the zoning, no reason to deny the sub- division, all requirements were worked out. They agreed to go PUD, at the Planners re- quest. At that time had height regulations that did not fit the project etc. Indicated to Council on Monday that voluntary PUD has not worked. Government has to identify those areas where PUD should be applied and make it a part of the official zoning. The Plnhing Office, about September of 1973, started to prepare the first draft for the down-zoning in the County. Ute Avenue area is an extension of that program, this not an isolated case. Planning Department feels that based on other changes that have occurred in that area there is more to justify the proposed zining than existing zoning. Further stated that when Ordinance ~19 went into effect, there were applications for over 400 units within the City limits and the feeling of the Planning office was we had to take the stron¢ est porition from the first day that would go along with the revised zoning for the City. Made the presentation to the Planning and Zoning for the down-zoning in the Ute area and they felt they should not recommend down-zoning but felt the proposal had merit and should be included in the Ordinance #19 land use plan. Attorney Albert Kern stated he had no quarrel With the down-zoning. Mr. Kern gave the background on the zoning for the Ute Avenue area by stating that the first zoning for Aspen was in 1956 and the area in question was zoned tourist which allowed for twice the units as the Gant is constructing. In 1966 the Master Plan was adopted and after that some significant changes in zoning came about, one being the open space requirement. In 1970 the densities were cut in half and no other density changes have occurred. In 1972, DRC purchased this land; property values are based on zoning. In the later part of 1972 and early 1973 subdivision plans were submitted and approved by the P & Z and Council. When approved by Council for 153 units, DRC did not apply for a permit which they could have done because condominiums were not covered under the subdivision regulations. They did go through the subdivision process and as a result gave up 4% of their land etc.. Mr. Bartell urged them to submit their development under the PUD process which is a signi- ficant process. There were certain gives and takes under this process and 143 units were approved (3 of the 143 units for emplOyee housing). Further they had to recognize a view plane and had to relocate buildings. Certain lands had to be reserved and set aside for rights-of-way. An agreement was entered into with the City requiring DRC to do certain things during certain phases, this is an integrated project. DRC has designed and in- stalled a utility system to meet the 143 units. Following the PUD process, the project was recommended for approval from the P & Z and Council and they did approve it. There was concern at all times by the Council of what would hapPen to the neighborhood. Not sure the Council had much choice since that was the law then and is today. Councilman Behrendt questioned what exact law prohibits Council from denying the permit. Mr. Kern replied the question is can a City deny a person or corporation who meets the law, the right to a building permit. Councilman Behrendt questioned what zoning would apply in phasing situation for future phases under a PUD arrangement. Mr. Kern replied under Aspen PUD regulations, you are required to state your schedule of phasing prior to approval. Understand this was required so the zoning would be known and impacts of the project could be ascertained at that time. Feel the Council is sitting today as a building inspector and feel that is wrong. The building inspector was ready to · issue the p~rmit last Tuesday. If Council decides not to issue the permit, would like to 1 know why so response can be given. Feel the law is very clear in Colorado in that if there has been reliance on a decision of a goVernmental body, you cannot go back and deny on that i reliance. i City Attorney Stuller clarified the point that when you grant a PUD, you are not rezoning the tract. The contract is nothing but an agreement that says we will accept their plat and they shall do certain things. Last paragraph of contract, "Notwithstanding anything contained herein or referred to the contrary, subdivider, in developing the property con- tained within t~e plat, and the other improvements as herein described, shall fully comply with applicable rules, regulations, standards and laws of the City and other governmental agencies and bodies having jurisdication". It is not the intene of the agreement to give them immunity from other rules and regulations. Its a 50/50 question and the question is when the City granted the PUD and subdivision, did DRC so rely on that they made such ex- penditures that the future 6f the development would be unfair, i.e. sales c~n~ifa6~~ -~ anticipated, architectual and engineering fees, utilities designed and stubbed in, some street improvements, some land dedications. The question is have they dealt in good faith with Us and WOuld it be unfair ~or~ius to deny~them now~ Mayor Standley questioned their trying to beat Ordinance #19 and playing the door game. DRC came in in June of 1973 for Phase #2 when it was actually schedul.ed for April of this year. Mr. Kern stated he disagreed with Attorney Stullers interpretation on the Dillon case, it does recognize PUD, the reliance doctrine is very important. PUD approval'becomes more than a one-way agreement and it says PUD shall become binding upon the property, the zoning stays the same. Ordinance #19 just establishes general guidelines, the PUD ordin- ance is a ~Ore!imPortant ordinance. P & Z can pretty well dictate a project under PUD. The reason for coming in early on Phase #2 was to avoid higher construction costs. City Attorney and Planner were told this and also that the completion date would remain as stated in the schedule and a certificate of occupancy would not be requested until that date. Council questioned the cities position if the permit were denied and the affects on the down-zoning proposed. City Attorney Stuller stated the cities case would depend upon the form of attack taken by Attorney Kern. Mr. Kern could argue, #1 they have immunity from any reqoning; #2 Ordin- ance #9 is invalid ~ the recommendation from P & Z does not affect his applicant; and #3 the down-zoning of that area is illegal. By denial of seCond phase would not affect the third phase. The counter argument would be they could not make a reasonable use of their land with the proposed down-zoning. The down-zoning does provide for multi-family structures, it is not limited to single family dwellings. The question then becomes could they build a milti-family structure with a limited density and still benefit reasonably from their property. It is possible they could provide some common facilities if they were willing to re-negotiate their PUD. Mr. Bartel Stated he could not talk about the down-zoning from a legal standpoint, only from a Planners view point. The Planning considerations are its a single family residen- tial neighborhoOd to the north. The Gant is located approximately in the center of that neighborhood and from a Planning point of view thats not the way you usually do things. There was a clear premise in plan of decreasing the density from Glory Hole Park to Ute Cemetery and then from Ute Cemetery, the County has adopted a revised master plan and the Commissioners have held a public hearing on the rezoning. So it was a matter of how this project integrated with the total neighborhood and in that respect the development of the Gant is not consistent with the plan. It is difficult to down-zone without creating non- conforming uses. Council questioned why consideration of a building permit has been brought before them. Attorney Stuller reported this case gets involved with Council's goals and wished to make Council aware of what is happening, not asking for formal action, feedback only. COuncilwoman Markalunas questioned Mr. Bartel as to when the down-zoning plan desCribed was adopted in the City that affects the Ute area. Mr, Barrel explained that would be with the adoption of Ordinance #19 which was in July of last year. Councilwoman Marka- lunas stated if DRC was approved in the spring, fail to see how the down-zoning is per- tinent to this already approved PUD. Mr. Bartel stated second phase permit has not been issued. A planner has the responsibility to make every project as good as he can every- time the applicant comes in. Question was asked of Council What the damages may be in the City were to lose this case. City Attorney Stuller stated that is every case in which the zoning has been challenged, no court has ever awarded damages against a municipality for their legislative action. What the courts do is invalidate their action. Mr. Kern stated they can award condemnatiOn damages. Attorney Stuller stated that is only in the case where the court sustains the Zoning. Mr. Bartel explained the down-zoning does include mandatory PUD, lower densities may not be required to phase their project. Mayor Standley pointed out that if the Council does not approve the down-zoning, then the Gant is no problem. Suggest holding the permit in abeyance until a decision is made on the down-zoning. Councilman Behrendt stated he would rather let the courts decide this issue. Councilwoman Markalunas stated she could see no reason for going PUD if there are no guarantees of permits on each phase. Councilman DeGregorio stated that he did not agree with more condominium development, but feel the down-zoning is a tool that must be applied and until that is accomplished have to issue the permit as it agrees with the law, must be objective and fair. Councilwoman Pedersen stated agreements have been entered into, DRC assumed responsibili~i ties. The major concern in this area is the rezoning which mUst be done properly and swiftly. Do not want to endanger the down-zoning. Feel the Gant in the case of rezoning will win the prize as the biggest non-conforming use in the area. City Attorney Stuller pointed out the question is whether DRC is immune - do they come under Ordinance #9 or not. P & Z has made a recommendation on the down, zoning. Attorney Kern stated the P & Z recommended against the down-zoning - at this time - so how can Ordinance #9 come into effect. Councilman Breasted moved the City Council not consider the building permit for the Gant. Seconded by Councilman WallS. Councilmembers Walls, Markalunas, Breasted and Pedersen aye; Behrendt, DeGregorio, and Mayor Standley nay. Motion carried. Permit to issue. 1535 Councilman DeGregorio moved to adjourn at 7:50 p.m., seconded by Councilman Behrendt. Ail in favor, meeting adjourned. , ~ "~.L~~~r~a v e ~/,~i ~y~/C 1 e rk